An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and Mailed
May 26, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

In his "letter of position" filed in support of his petition for commission review the complainant argues that the administrative law judge erred in denying his "Motion for Judgment as a Matter of Law." The complainant propounds a theory that the respondent, as a corporation, has no legal standing in this matter and is "automatically liable for any damage it creates by a party who files a valid claim through a valid administrative or judicial agency." The complainant's argument fails. The administrative law judge properly rejected the notion that, because the respondent is a corporation, it has no right to defend itself against claims filed against it.

Next, the complainant argues that he filed with the administrative law judge a
list of eleven witnesses he wanted to subpoena, along with the legal reason for
the subpoena request, on June 19, 2009, almost two months before the hearing.
The complainant contends that the administrative law judge severely compromised
his hearing by refusing to allow him to call witnesses necessary to prove his
prima facie case. Again, this argument fails. The administrative law judge
explained in his decision that, owing to the large number of witnesses the
complainant sought to subpoena, (1) the complainant was asked to provide a synopsis of the expected testimony of each witness in order to assist the administrative law judge in determining whether the testimony would be relevant. However, the information provided by the complainant on June 19, 2009 consisted of a two or three-word description of what each witness would testify to, and was inadequate to assist the administrative law judge in determining whether to issue the requested subpoenas. The complainant failed to provide the information requested by the administrative law judge until September 1, 2009, only a week prior to the hearing, at which point the administrative law judge lacked sufficient time to review the complainant's requests. The administrative law judge, therefore, reasonably declined to issue the subpoenas. The commission notes, moreover, that at the hearing the administrative law judge advised the complainant that he could request a continuance if there was a witness whose testimony was crucial to the presentation of his case, but the complainant did not do so. The complainant brought four witnesses to the hearing, all of whom testified. Under all the circumstances, the commission sees no reason to believe that the complainant was denied a reasonable opportunity to present necessary witness testimony on his behalf.

The complainant also argues that the administrative law judge erred in discounting testimony by his witnesses to the effect that the respondent was plotting ways for the complainant to resign, quit, or get fired, and showing a pattern of age discrimination. There is no merit to this argument. The administrative law judge did consider the testimony of the complainant's witnesses. However, that testimony did not establish any reason to believe that the complainant was discriminated against in the manner alleged. The complainant's first witness, Craig Bek, testified that two of the complainant's co-workers referred to him as "the old man," and that management heard these remarks but, to Mr. Bek's knowledge, took no action. Mr. Bek also testified that there were national headlines about the respondent wanting to get rid of older workers, but he conceded he had no firsthand knowledge that this was the case and that no one had talked to him about discharging the complainant because of his age. The complainant's second witness, George Watts, testified that he felt the respondent lacked good cause to discharge the complainant, but provided no evidence to suggest that the discharge was related to the complainant's age or in retaliation for having filed a complaint. The complainant's next witness, Daniel Cotter, testified that the complainant was harassed by co-workers who called him "old," and that they did so with the approval of management. Finally, a fourth witness, Ramona Weaver, testified that she believed she was discharged because she was earning more money than a younger worker.

The commission has considered the testimony of the complainant's witnesses, and agrees with the administrative law judge that it does not support a finding that the complainant's discharge was because of his age or in retaliation for protected activities. While the complainant did have witnesses who testified that the respondent took no steps when the complainant's co-workers called him "old man," other witnesses with firsthand knowledge of the situation credibly testified that the complainant participated by calling the co-workers in question names like "young punks" and "young whippersnappers," and that the store manager eventually told everyone involved that their actions were inappropriate for the work environment and directed them to desist. The evidence does not indicate that the respondent permitted harassment to occur.

The remainder of the arguments raised in the complainant's "statement of position" do not address any errors of fact or law made by the administrative law judge, and appear to relate to extraneous matters having no bearing on the outcome of this case. Among other things, the complainant complains about the way in which the investigation was handled, and raises allegations of wrongful termination and breach of contract, matters which have no bearing on the question of whether he established probable cause to believe discrimination occurred. In the absence of any reason to believe that the complainant was discriminated against in the terms and conditions of his employment or was discharged because of his age or in retaliation for having engaged in protected conduct, the dismissal of the complaint is affirmed.